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Outspoken Activist’s Case Becomes Tangled in Secrets

Last week, I asked a lawyer from a libertarian group for a copy of a brief it had filed in a First Amendment case. Sounding frustrated and incredulous, he said a federal appeals court had sealed the brief and forbidden its distribution.

“It’s a profound problem,” said the lawyer, Paul M. Sherman, with the Institute for Justice. “We want to bring attention to important First Amendment issues but cannot share the brief that most forcefully makes those arguments.”

The brief was filed in support of Siobhan Reynolds, an activist who thinks the government is too aggressive in prosecuting doctors who prescribe pain medications.

The Institute for Justice does not represent Ms. Reynolds, and it is not a party in the case. Its submission, made with a second libertarian group, Reason Foundation, was an amici curiae — or friends of the court — brief. It relied only on publicly available materials.

But it was sealed by the United States Court of Appeals for the 10th Circuit, in Denver, citing grand jury secrecy rules. The court then denied the groups’ motion to unseal their own brief. That ruling itself is sealed, too, but I have seen parts of it.

Among the reasons for keeping the brief secret, the court said, was that the groups’ goal “is clearly to discuss in public amici’s agenda.” Well, yes.

The brief paints an unflattering picture of the United States attorney’s office in Kansas, which may have overreacted to Ms. Reynolds’s adamant public defense of two medical professionals, Stephen J. Schneider and his wife, Linda K. Schneider, who were indicted in 2007 for illegally distributing prescription painkillers to patients who overdosed on them.

In 2008, Tanya J. Treadway, a federal prosecutor, asked the judge in the Schneiders’ case to prohibit Ms. Reynolds, who is not a lawyer and had no formal role in the case, from making “extrajudicial statements.” In the vernacular, Ms. Treadway asked for a gag order.

Then Ms. Treadway tried another tack. She issued a sprawling grand jury subpoena to Ms. Reynolds.

It had almost 100 subparts and sought documents, e-mails, phone records, checks, bank records, credit card receipts, photographs, videos and “Facebook communications (including messages and wall posts)” concerning contacts with dozens of people, including doctors and lawyers, along with information about a billboard supporting the Schneiders and a documentary film called, perhaps presciently, “The Chilling Effect.”

“It was a nuclear bomb of a subpoena,” Ms. Reynolds said in an interview from Santa Fe, N.M., where she lives. “I was viscerally terrorized. I was genuinely physically frightened.”

Mr. Sherman, of the Institute for Justice, said the subpoena to Ms. Reynolds smelled of prosecutorial payback. “As far as we can tell,” he said, “she was targeted because of her outspoken criticism.”

Ms. Reynolds, represented by the American Civil Liberties Union, moved to quash the subpoena and lost. When she refused to comply with the court’s order, Judge Julie A. Robinson of Federal District Court in Topeka imposed fines on Ms. Reynolds and her group, the Pain Relief Network, of $200 each a day.

“By early January, I was completely destitute,” Ms. Reynolds said. “My organization was ruined, and so was I.”

After paying almost $40,000 and facing the possibility of jail time, Ms. Reynolds folded, turning over thousands pages of documents. Judge Robinson refused to refund the fines.

The case has now reached the Supreme Court, and the justices are likely to decide next week whether to hear it. The publicly available version of Ms. Reynolds’s petition seeking review is studded with blacked-out passages.

Grand jury secrecy often protects important interests, notably the reputations of people under investigation. But Ms. Reynolds’s lawyer, Robert Corn-Revere of Davis Wright Tremaine in Washington, said the usual rules had been turned upside down in this case.

“The grand jury was created to be a buffer between the government and the people and to be a check on tyranny,” Mr. Corn-Revere said. “The problem in this case is that it was misused by a prosecutor to silence a government critic and then to hide those actions in secret proceedings.”

Ms. Reynolds is in her way quite effective. She seems to have the ability to drive the judicial system nuts.

When Judge Belot sentenced the Schneiders to 30 years in prison last month, he digressed to take a swipe at Ms. Reynolds and her group, though he did not get its name quite right.

Judge Belot said he hoped the prison sentences would “curtail or stop the activities of the Bozo the Clown outfit known as the Pain Control Network, a ship of fools if there ever was one.” He added that the group and its leaders were “stupid” and “deranged.”

Ms. Reynolds said she could live with the insults. The grand jury subpoena was another matter.

“We absolutely need voices speaking out,” she said. “I’m afraid of the chilling effect this will have on activism in general.”

A version of this article appears in print on November 2, 2010, on Page A22 of the New York edition with the headline: Outspoken Activist’s Case Becomes Tangled in Secrets. Order Reprints|Today's Paper|Subscribe